Crossing the Line / Sorting out sexual harassment in the workplace

Published 4:00 am, Monday, March 23, 1998

Sex in the office, 1978: The boss demands sexual favors. The terrified secretary tries to fend him off. If she doesn't like the situation, tough luck: She should look for a new job.

-- Sex in the office, 1988: The boss demands sexual favors. The terrified secretary files a sexual harassment complaint. If the company doesn't take her seriously, she sues -- and sometimes she wins.

-- Sex in the office, 1998: America's top enlisted officer is accused of repeated instances of harassment by six different women -- and is acquitted. President Bill Clinton is accused of harassment by one woman -- and is forced to testify under oath about every woman he's rumored ever to have slept with. Meanwhile, the Supreme Court rules that male employees can sue male bosses for sexual harassment -- even if they're all heterosexual and no one's trying to sleep with anyone else.

What's going on with sexual harassment law? Since the Anita Hill/Clarence Thomas dispute of 1991, the number of people filing federal sexual harassment complaints has risen from about 7,000 to 15,000 a year. Thousands of companies have added policies and training programs aimed at preventing harassment on the job.

We talked with local experts in employment law to try and sort some of this out:

Q: Just what is sexual harassment, in legal terms?

A: Sexual harassment is a kind of sex discrimination, prohibited under Title VII of the Civil Rights Act of 1964.

The courts have defined two different kinds of harassment. One is "quid pro quo," which is Latin for "this for that." This is what most people picture when they think of sexual harassment -- a boss who requires a worker to submit to sexual advances in exchange for advancing at work.

The other kind is "hostile environment" harassment.

This includes a wide range of behavior -- everything from unwelcome sexual advances to lewd comments or sexist e-mail messages. The behavior must create such an intimidating, hostile or offensive work environment that it interferes with the victim's ability to do his or her job.

Q: Where did the whole concept of sexual harassment come from? No one even heard of the phrase "sexual harassment" 20 years ago.

A: In the 1970s, feminist legal scholar Catherine MacKinnon first raised the idea that forcing women to have sex to keep their jobs or win a promotion was a kind of gender discrimination.

ment. The problem is, the details of sexual harassment law are being worked out on a case-by-case basis. And that means that different courts are coming up with very different rulings in similar cases.

For example, California courts say that companies are legally liable for any harassment carried out by their supervisors -- even if top company officials didn't know the harassment was going on.

But many other states say that companies aren't liable unless their top officials knew or "should have known" that the harassment was taking place.

Who's right? That's the core issue that will be debated before the U.S. Supreme Court next Wednesday in a Florida-based case called Faragher v. Boca Raton.

Q: Let's say a boss politely asks an employee out for a date. Is that harassment?

"If the employee says no and there are no repercussions, it's not actionable," Oppenheimer said. "It may violate company policies about supervisors asking their subordinates out on on dates, but it's not illegal."

Q: What if the boss asks a worker for a date, the worker clearly says no, but the boss keeps asking?

A: This is where we get into the gray area, where different courts can rule quite differently. It depends on how aggressively and persistently the boss asks -- whether the boss is so insistent that the employee feels she can no longer do her job comfortably.

"At some point, it becomes harassment," Oppenheimer said. "The question is, whether it's after the fifth request or the 20th. I don't think there's a clear answer to that."

Q: In Paula Jones' lawsuit against Clinton, what kind of harassment is she alleging?

A: Jones' attorneys -- who claim that Clinton exposed himself to her in a hotel room when he was governor of Arkansas and she was a state worker -- are charging that she suffered from both kinds of harassment.

On the quid pro quo front, they say that Clinton implicitly threatened Jones by mentioning that he was friends with her boss. They say that her career suffered because she refused his advance.

Meanwhile, her attorneys also claim that Clinton's act of exposing himself was severe enough to create a hostile work environment -- even though the incident occurred just once.

Q: How strong a case does she have?

A: Many attorneys think the case is too weak to win at trial.

"Clinton didn't explicitly threaten her, so she has to show some actual detriment to her career because of the encounter," said Deborah Rhode, a law professor at Stanford University. "There's some question if she can do that."

But Jones' case may still be strong enough to survive Clinton's motion for dismissal, which the judge will address in May.

"Many courts would say a single solicitation is insufficient to meet the definition of harassment," said David Oppenheimer, a Golden Gate University law professor. "But some would permit it to go to a jury, especially if she's alleging that she suffered profound emotional damages."

A: No. This is why some harassment experts currently feel frustrated. They feel that much of the national debate is lumping very different things together -- some of which are sexual harassment, and some of which are not.

-- Clinton's alleged affair with Flowers would have involved two consenting adults who didn't work together. That's not sexual harassment.

-- His alleged affair with Monica Lewinsky would have been with a subordinate. But Lewinsky hasn't claimed that his advances were "unwelcome," so that wouldn't be harassment.

-- Willey does claim that the president made an unwelcome overture. But she was not a White House employee at the time and doesn't claim that she was denied work for rebuffing him. So that wouldn't fit the legal definition of harassment either.

"All of this attention now around Clinton is just serving to confuse the issue," said Barry Chersky, a San Francisco consultant in sexual harassment prevention. "People are just becoming more confused about what is consensual, what is not and what is the responsibility of women in these situations."

Q: If those other cases aren't harassment, why are Jones' lawyers being allowed to file all that evidence about them? Is such a broad look at someone's personal life normal for a sexual harassment lawsuit?

A: Lawyers in high-stakes harassment suits in the private sector sometimes undertake similar kinds of fishing trips into people's personal lives -- in an effort to intimidate the opposing side into settling the case.

But very few cases involve as much mud-digging as the Clinton case, with its political overtones.

"In most general run-of-the- mill cases, we just depose both parties and maybe a witness -- nothing like the scale here," said Richard Curiale, an attorney with Curiale, Dellaverson, Hirschseld, Kelly & Kraemer in San Francisco.

In the end, testimony about other sexual relationships often is not admissible as evidence during trial.

And in California -- which has tougher privacy laws than most other states -- courts would probably exclude all testimony about past sexual relationships that didn't involve harassment charges.

"If the Jones case were being heard in California, it's likely a lot of those depositions wouldn't be happening," said Lynn Hermle, an attorney with Orrick Herrington & Sutcliffe in Palo Alto.

Q: What's the impact of the recent case involving Sergeant Major Gene McKinney? Six women testified independently that he harassed them, but he was acquitted of everything except one count of obstructing justice. Does that set a bad precedent for other women who face harassment?

A: It certainly sends a discouraging message to women facing harassment within the military, according to experts.

But it shouldn't necessarily send such a negative message to people facing harassment in the civilian business world.

That's because the McKinney case was heard in a military court, which is like a criminal trial in that prosecutors had to prove that harassment occurred "beyond a reasonable doubt."

Civilian harassment cases, on the other hand, are heard in civil court.

And there, according to Curiale, the victim only has to show a "preponderance of evidence" that he or she was harassed.

Q: The Supreme Court ruled on March 3 that same-sex harassment -- men harassing men, for instance -- is illegal. What will that mean?

A: California courts have ruled that same-sex harassment is illegal for quite a while now, so it may not make much actual difference in this state. But elsewhere, it means that courts can't throw out a sex harassment claim just because both parties are the same sex.

Q: What other sexual harassment questions are coming before the court this year?

A: The Supreme Court has agreed to hear four harassment cases this session -- more than in all previous years combined. Here are the ones remaining: -- Can companies be held liable for their managers' acts of harassment if top company officials didn't know what was going on? (In Faragher v. Boca Raton, which will be heard next Wednesday, two female lifeguards are suing the city over alleged harassment by the chief lifeguard.) -- Can someone sue for quid- pro-quo sexual harassment if they never suffered any actual retaliation for spurning their boss' advances? (In Burlington Industries Inc. v. Ellerth, a woman says she rebuffed an advance by her boss, who threatened to hurt her prospects at the firm. She quit before he could retaliate but is seeking damages anyway.)

-- Can school districts be held liable for a teacher's illegal sexual relationship with a student, when district officials didn't know about it? (Gebser v. Lago Vista Independent School District is slated to be heard next Wednesday, just after the Faragher case.)

These cases may help clarify the jumbled state of harassment law -- but they are not likely to end the confusion.

"These laws have a lot of gray areas," said Barry Lawrence, spokesman for the Society for Human Resource Management. "Anytime you try to institute rules about human behavior, you're going to end up with a lot of gray. And any time you close one loophole, people are doing to find another."

RESOURCES ON SEXUAL HARASSMENT

BOOKS (x) -- "Sexual Harassment on the Job: What It Is and How to Stop It," by William Petrocelli and Barbara Kate Repa. Third edition released by Nolo Press in January 1998, $18.95. -- "Step Forward: Sexual Harassment in the Workplace, What You Need to Know!," by Susan L. Webb. Second edition released by Master Media in November 1997, $12.95. -- "Stopping Sexual Harassment: An Employer's Guide," by Richard Curiale, Susan Kemp, and Stephen Hirschfeld. Published by the California Chamber of Commerce, and available for $39. Call (800) 331-8877. -- "Sexual Harassment in the Workplace: How to Prevent, Investigate, and Resolve Problems in Your Organization," by Ellen Wagner. Published in 1992 by AMACOM, $17.95. -- "The 9to5 Guide to Combating Sexual Harassment," by Ellen Bravo and Ellen Cassedy. Published in 1992 by John Wiley & Sons and 9to5, the National Association of Working Women.

ORGANIZATIONS

-- U.S. Equal Employment Opportunity Commission offers several free fact sheets on sexual harassment. Call (800) 669-3362 or visit their Web site at
www.eeoc.gov
. -- Northern California Human Resources Council. Regional association of human resources experts. Can provide employers with referrals to local consultants who specialize in sexual harassment prevention. Call (415) 291-1992. -- American Society for Training & Development. A national organization of workplace trainers. Provides referrals to trainers who specialize in sexual harassment prevention. Call (703) 683-8100. -- Equal Rights Advocates. A San Francisco nonprofit group that provides free legal counseling to women on issues such as sexual harassment. Call (800) 839-4372. -- 9to5, National Association of Working Women. Membership group for office workers with free telephone hotline that offers counseling on sexual harassment and other job problems. Call (216) 566-9308 or (800) 522-0925 (hotline). -- Employment Law Center. Nonprofit group affiliated with the Legal Aid Society that offers free legal advice to low-income workers in the Bay Area. Call (415) 864-8848 or (415) 864-8208. -- Women's Employment Rights Law Clinic. Part of Golden Gate University. Provides free legal advice to women workers. Call (415) 442-6647. (x) Note: The law is constantly evolving in this field. Although these books may provide you with useful overview and background, they may not be completely current. If you face an actual harassment problem, it's best to consult with an experienced employment lawyer. Source: Chronicle research